The draft “Critical Infrastructure Protection Bill” is open for public comment until 15 June 2016. The draft Bill seeks to replace the National Key Points Act, an Apartheid law passed in 1980 to deal with the perceived threat of sabotage to apartheid infrastructure. This Act was strongly recognised as an undemocratic and unconstitutional law even though it remained intact during the transition to democracy and has now found a second life in the post-apartheid era. (See our factsheet on the National Key Points Act here.)

What’s wrong with the ‘National Key Points Act’?

The National Key Points Act came under great public scrutiny during the Nkandla scandal, when the homestead of President Jacob Zuma was declared a National Key Point and that the cost for security upgrades needed for such a National Key Point was to be born by the State (essentially public money). But in fact for years the Act had been used to undermine transparency and accountability, at a local level, especially affecting community protesters and environmental activists.

The Act has been criticized for lacking transparency (even the list of National Key Points was a secret), and for providing a convenient excuse to undermine the right to protest (officials routinely try to stop protests at national key points) and shield certain institutions (including private companies) from criticism or accountability. In 2014, two refineries even refused to release environmental compliance information because they were national key points.

The constitutionality and legality of the National Key Points Act was challenged for a number of reasons as it infringed on rights like the access to information, as the public did not have access to a list of the National Key Points and thus could unintentionally be committing crimes in relation to National Key Points. In the South Gauteng High Court case in the case Right2Know Campaign and Another v Minister of Police and Another. It was ordered that the applicants and the public have access to the list of National Key Points.

What is wrong with the Draft ‘Critical Infrastructure Protection Bill’?

In light of all the controversy around the ‘National Key Points Act’, the former Minister of Police, Nathi Mthethwa, promised a review of the Act in May 2013. Now the Civilian Secretariat for Police Service has introduced the Draft “Critical Infrastructure Protection Bill’, which is open to the public for commentary until the 15th of June 2016.

This draft Bill does not deal with the failings of the previous Act, as it does not adequately deal with issues of openness and transparency. Any new law must be as narrowly applied as possible, with strong, independent oversight – both through formal institutions and through the provision of full public participation and citizen oversight. Above all, activities in the public interest, including whistleblowing, journalism, protest and dissent should be protected from prosecution.

The draft Bill makes very little provision for the oversight role of Parliament, and none for the public.

While the South Gauteng High Court ordered that the public have access to the list of National Key Points, the draft Bill leaves the question open of whether or not the list of critical infrastructure will be secret or public.

This draft Bill still gives huge power to the Minister to declare infrastructure as “Critical Infrastructure” – which is what National Key Points will be now called. These could be public sector bodies or private companies. The policy is likely to cover more than 200 existing national key points, as well as more than 248 secret government sites that are declared ‘strategic installations’ – and could potentially apply to any other building or location. The criteria for whether a site should be protected, as ‘critical infrastructure’ is even wider than the National Key Points Act.

This draft Bill infringes on the right to protest, as any disruption or obstruction to the functioning of “Critical Infrastructure” is an offence under the Bill and one could be prosecuted up to 20 years for interfering in anyway with ‘critical infrastructure’.

The bill also attempts to infringe on the right to freedom of speech and media freedom as it prohibits and states that any filming, photographing of ‘critical infrastructure ’and publishing of such imagery is unlawful.

As seen with the Nkandla saga, the Act suggests that the state will be liable for the security upgrades of privately owned critical infrastructure, this means that tax payers could be liable for the costs of protecting Big Business as mines and other corporations can be classified as critical infrastructure.

It infringes on the Rule of Law as it attempts to apply this Bill retrospectively and thus this provision is unconstitutional. The Separation of Powers must strongly be protected and thus the powers of the Minister, the National Commissioner must be made clear so that the Executive does not try to change legislation through policy.

We must caution against policies that invite officials to exercise powers of secrecy and repression that go far beyond the specific measures of the Bill. We have to protect our right to protest, our right to access information and to media freedom.

R2K is preparing a submission on the draft “Critical Infrastructure Protection Bill”. The draft Bill is open for comments until the 15th of June 2016.